Tire Chalking Ruled Vital and Legal for Parking Enforcement

By Michael Ash, JD, CRE

IN A column published in February 2020, I clarified the ruling from a federal court in Michi­gan that started a misimpression that tire chalking was ruled unconstitutional. The case was sent back from the appellate court for further proceedings by the trial court; those further proceedings have concluded and the court ruled tire chalking is a legal and vital element of on-street parking enforcement.

The Case

Starting in 2014, a resident of Sag­inaw, Mich., received 15 parking tickets “for allegedly exceeding the time limit of a parking spot.” The tickets were issued by Sag­inaw’s “most prolific issuer of parking tickets.” Each parking ticket included the date and time that the tire of the resi­dent’s vehicle was chalked. The recipient of the tickets challenged the “methodology of placing a chalk mark on one of the four tires of the vehicles to obtain information to justify the issuance of tickets throughout the territorial limits of the city of Saginaw.” The attorney framed the issue as a class action lawsuit on the theory that the “chalk marks violate the Fourth Amendment of the United States Constitution.” On a motion from the city, the district court initially dismissed the complaint, which was appealed to the United States Court of Appeals, Sixth Circuit.

The Fourth Amendment to the United States Consti­tution prohibits unreasonable searches and seizures: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issues, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment review is a two-part test:

  • Did a search or seizure occur?
  • If so, was that search or seizure unreasonable?

The ticket recipient tried to extend the holding of a recent case that decided the government’s installation of a GPS device on a target’s vehicle was a search under the Fourth Amendment because the phys­ical installation of the device on the vehicle constituted a trespass of the car owner’s property rights. However, tres­pass alone does not qualify as a search; rather, there must be both trespass and an attempt to find something or to obtain information. This was the key question reviewed by the court.

The trial court found that, “despite the low-tech nature of the investigative technique, the chalk marks clearly provided information” to the parking enforcement officer. The chalk marks serve to identify the vehicles and when they parked. The court concluded that a “search” does likely occur when a tire is chalked. However, the analysis must also resolve whether the search is reasonable and as a matter of law, the search of an automobile is far less intrusive than the search of a person or building because car exists on pub­lic streets in plain view to the public. Ultimately the court concluded that even if tire chalking could be considered a search, it was reasonable. Accordingly, the complaint was dismissed in ­September 2017.

The ticket recipient appealed to the United States Court of Appeals for the Sixth Circuit. The appellate court disagreed with the trial court, found that the lower court applied the wrong legal standard, and sent the case back for further proceedings. The appellate court issued an amended opinion:

“Taking the allegations in the complaint as true, we hold that chalking is a search under the Fourth Amendment, specifically under the Supreme Court’s decision in Jones. This does not mean, however, that chalking violate the Fourth Amendment. Rather, we hold, based on the plead­ing stage of this litigation, that two exceptions to the war­rant requirement – the ‘community caretaking’ exception and the motor-vehicle exception – do not apply here. Our holding extends no further than this.”

The Newest Ruling

On remand back to the lower court, a factual record was de­veloped as to the custom and practice of tire-chalking. The original trial court relied on the facts in the affidavit from the city’s director of neighborhood services and inspections:

  • That parking enforcement within the city is necessary to pro­mote safe use of the roadways and downtown businesses.
  • That parking enforcement within the city is necessary to promote equal access to limited parking spaces and the downtown businesses.
  • That chalk was provided to the city enforcement officials as a means of enforcing parking ordinances by informing vehicle owners and/or operators that the officials were enforcing city ordinances, including the time restrictions set forth therein.

On the basis of this critical factual record, and applying the proper legal standard, on-street parking enforcement has again been upheld. Street parking regulations are a proper ex­ercise of a municipality’s police powers as it “bears a substan­tial relation to the public health, welfare, safety, and morals” of the community. While tire-chalking does constitute a search for purposes of the Fourth Amendment, it is a reasonable search in furtherance of a legitimate government purpose that falls within the administrative search exception.

According to the opinion of the court, the government in­terest “promotes safety and order on its roadways and ensures that multiple people can access downtown businesses.” Be­cause “regulating parking involves more than simply issuing a ticket and placing it on the vehicle” parking enforcement “may also involve other methods, such as chalking a vehicle’s tire to notify the driver that their parking time is being monitored.” Finally, “chalking may lead to more effective parking regula­tion because it reminds drivers to move their vehicles before their allotted time has expired.”

As of press time, on-street parking enforcement, and spe­cifically tire-chalking, has been upheld by the courts. The case that brought the tire-chalking controversy to the courts and media attention has been dismissed again and on-street park­ing enforcement will continue to be upheld. .

MICHAEL J. ASH, Esq., CRE, is partner with Carlin & Ward. He can be reached at michael.ash@carlinward.com.

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